Boston U. Patent Lawsuits Hit Apple, Amazon, Samsung, and Others 147
curtwoodward writes "First, we heard that Boston University — a private, four-year school overshadowed by neighbors like MIT and Harvard — was suing Apple for patent infringement. Well, sure, patent lawsuits in tech are an everyday thing, right? But it turns out this is not a one-off: BU has been quietly filing a barrage of patent lawsuits since last fall, all of them revolving around the same patents for LED and semiconductor technology. And the targets run the gamut, from Apple and Amazon to Samsung and several small companies that distribute or sell LEDs and other equipment. A couple of small guys have settled, but Amazon and Samsung are refusing. Still to come: Apple's response."
Summary of situation... (Score:5, Funny)
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Penguins and polar bears together? Seriously?
Wow (Score:3)
Thank goodness we've got this method for promoting progress in the useful arts.
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Yes, it would be better if we let corporation run roughshod over the universities and people who actually develop things.
No, actually... (Score:4, Insightful)
It would be better if we adequately taxed corporations to fund this research and then allowed it to be publicly released to all, such that any person who could turn the research into an application could have the opportunity without fear of patent trolls.
But that's just crazy talk afterall. I mean slitting a city/county/state's own fiscal wrists to allow a company to locate themselves there is necessary in this tough economic climate, isn't it? :-P
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It would be better if we adequately taxed corporations to fund this research and then allowed it to be publicly released to all, such that any person who could turn the research into an application could have the opportunity without fear of patent trolls.
But that's just crazy talk afterall. I mean slitting a city/county/state's own fiscal wrists to allow a company to locate themselves there is necessary in this tough economic climate, isn't it? :-P
I've got a better idea. Any products produced with patents/research that were publicly funded have to have the proceeds prorated between the corporate and public contribution with the public portion returned back to the government. If the government paid for 80% of the research, then 80% of the profit goes back to the treasury. If private funds were used, then they can do with it what they want.
Why should the taxpayer pay for the research so that some corporation can charge the consumer/taxpayer back for t
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If we had this system imagine how well NASA would be funded right now. How much modern infrastructure would not even exist without NASA but all that happens is they get their budget cut. Right now our system has public investment in technology but then private companies keep all the money and charge us for the technology we paid to develop.
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If we had this system imagine how well NASA would be funded right now. How much modern infrastructure would not even exist without NASA but all that happens is they get their budget cut. Right now our system has public investment in technology but then private companies keep all the money and charge us for the technology we paid to develop.
My point exactly.
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Well, right now that money gets sent right back to the university who uses it to fund more research. Government grants do not go nearly as far as people think.
BU is a private university. State Universities, would include not just the government grant, but all government funding related to the program/project. Of course, I would amend my proposal then and allocate the government return based on the government funding source - federal/state.
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And suddenly every patent produces negative profit just like movies.
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And suddenly every patent produces negative profit just like movies.
No, the profit is exactly the same as it was before. It is simply allocated proportionately as to who invested the money into the research. If 80% public finance research then 80% back to the public. If 80% private research then 80% back to the corporation. That is exactly how business partnerships work for everything else.
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And suddenly every patent produces negative profit just like movies.
No, the profit is exactly the same as it was before. It is simply allocated proportionately as to who invested the money into the research. If 80% public finance research then 80% back to the public. If 80% private research then 80% back to the corporation. That is exactly how business partnerships work for everything else.
You're missing his point. He is referring to "Hollywood Accounting" where in no matter how much money a movie makes, It didn't make any, according to the creative accounting. This keeps them from having to pay a percentage in royalties to nearly everyone involved in the film, as well as giving the studios additional tax write-offs.
Wiki has a nice summary [wikipedia.org]
Harry Potter films made no money, despite grossing over $1 billion each. [deadline.com]
In fact, Dave Proust still isn't getting anything from LucasFilm for playin
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Not a troll on the surface. (Score:3, Interesting)
On the surface this sounds like patents which relate to semiconductor physics and process technologies.
This is _exactly_ the kind of thing the patent system was designed for! They're not goofy/obvious/stupid software patents - they are extremely complicated and non-trivial processes.
This isn't a "rounded corners" case and doesn't look like a patent troll.
Re:Not a troll on the surface. (Score:5, Insightful)
On the surface this sounds like patents which relate to semiconductor physics and process technologies.
This is _exactly_ the kind of thing the patent system was designed for! They're not goofy/obvious/stupid software patents - they are extremely complicated and non-trivial processes.
This isn't a "rounded corners" case and doesn't look like a patent troll.
Yes it is a troll.
Look, Apple doesn't manufacture ANYTHING. Neither does AMAZON. The companies they hire to build their devices buy parts on the open market.
Those parts manufacturers (which may include Samsung) are the proper targets for Lawsuits if Boston U actually has a case. Not someone simply buying a component on the market and using it. Especially when those components have been available on the market for 20 years.
B.U. might just as well sue YOU for using a LED without a license.
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BINGO!!!
Those companies that actually manufacture the COMPONENTS covered by the patents are liable, if they are infringing.
Customers aren't liable. It's insane that today's legal "minds" see all purchasing customers as potential defendants in these lawsuits. Slippery slope, anyone? The police could be searching your home and business, looking for any potentially infringing devices that you might own, and imposing fees and penalties on each device.
The university needs to go after the people who are manufa
Re: Not a troll on the surface. (Score:2)
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It was the corporation that manufactured and supplied the components in question that is liable. Apple designed a product, asked someone to produce it, and that someone went to some supplier for the components. The component manufacturer is clearly liable, if anyone is liable. If that Apple device assembly plant in China actually manufactured that component themselves, then they are liable. Otherwise, they pass the liability on to their supplier.
The entire iDevice doesn't impose on the patent in questio
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It may not make any sense. (If it does, nobody has ever explained it to me.) But IIUC that's the way that patent law, unlike copyright law, reads.
Re:Not a troll on the surface. (Score:4, Insightful)
The University failed to defend their patent while all sorts of third parties put the devices into production and sold them openly on the components market world wide. Apple produces nothing. They don't have a single Fab. They buy parts on the open market, and have them delivered to Foxconn.
Open market commodities, uncontested by the claimed patent holder do not become violations simple by being incorporated into a device.
BU manufacturers nothing except lawsuit. Google "patent assertion entities" and learn what trolling is all about.
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The University failed to defend their patent while all sorts of third parties put the devices into production and sold them openly on the components market world wide. Apple produces nothing. They don't have a single Fab. They buy parts on the open market, and have them delivered to Foxconn.
Open market commodities, uncontested by the claimed patent holder do not become violations simple by being incorporated into a device.
BU manufacturers nothing except lawsuit. Google "patent assertion entities" and learn what trolling is all about.
Apple produces it's own products, as does Amazon. To claim that they aren't infringing, because they outsource the manufacturing is disengenous. Using that analogy, no manufacturer would be liable for patent infringment if they were only assembling components made by others. Maybe Samsung should have used that defense against Apple and challenged Apple's patent because Apple never produced a product so there were no damages to Apple.
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Designs using off the shelf parts.
That's the thing you refuse to consider. The parts are readily available from a dozen different manufacturers.
Pick up any DigiKey catalog. OFF THE SHELF COMMODITIES.
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As for what BU manufactures, they do research, research private entities then use to design marketable products.
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BU is suing over the use of off the shelf parts in devices.
Stop throwing the word "design" out there like it matters. It doesn't.
BU didn't defend its parent against manufacturers of these commonly available parts which are sold in the US every day, because they knew their patents were invalid.
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Sara Lee makes things too. But like Apple and Amazon, they don't make LEDs and they don't use the patented technique.
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I doubt Apple or Amazon is specifying how the LEDs are made. This is a weirdness in patent law, in that you can sue the user of patent infringing part, not the manufacturer.
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Yeah, but why Apple? Then don't make any semiconductors. Isn't payment of patent royalties the responsibility of the manufacturer of the LED's? If not, how can anybody build anything out of parts sourced from other companies? You'd have no way of knowing what patents you were responsible for clearing rights to.
Re:Not a troll on the surface. (Score:5, Informative)
Is it's a US patent, the entity that imports the infringing item gets sued.
You can't sue someone in China to manufacturing it.
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Re:Not a troll on the surface. (Score:5, Insightful)
Looks like BU failed to secure a patent outside the US, where, in all likelihood, the LEDs are being manufactured. Well, I believe that BU's patent gives them the right to exclude the patented devices from being brought into the US. Since they aren't being seized by customs (which may be what should be happening), BU is going after the organization with deep pockets that's importing the devices in a finished product.
Two things are outrageous here. BU appears to be suing for dollar amounts absurdly in excess of the marginal utility of its invention. And BU is suing long after the patent was issued, never having defended the patent before, which weakens their case considerably (because it is similar to entrapment.)
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The trouble is if the device manufacturer doesn't have a US representation. Then the company that does the importing of the infringing goods is liable, in this case Amazon, Apple and Samsung.
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Isn't that the norm? You ask for a few beeellion dollars, the offending end product to be crushed to powder and shot into the sun, and the firstborn of the company's executives to be sacrificed to Ba'al. Then you settle out of court for something more reasonable.
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Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent
Unless there is something else in there to prevent it, I imagine that "uses" would mean that if someone was willing for their organization to become the most hated in the country, they could go around suing every iPhone user in sight for patent infringement.
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Because Apple is re-selling the LEDs? I think patent law does apply here, although usually what happens it that if the company being sued turns around and sues their supplier.
There is an "exhaustion doctrine" but it only applies if the suppliers were authorized to sell the items in the first place. Ie, the patent holder can't restrict downstream reselling of the devices (similar to first-sale doctrine), though possibly there could be restrictions added in the original licensing agreement. Since this only
Re:Not a troll on the surface. (Score:4, Informative)
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For BU to go after Apple and others, they would have to prove that they knew that these products were violating patents
Wrong. "Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent."
Re:Not a troll on the surface. (Score:4, Informative)
There are two parts you missed:
Except as otherwise provided in this title . . . any patented invention . . .
You only quoted part (a) of US 271 [cornell.edu] which deals with direct infringing of a whole invention. Part (c) deals with contributory infringement of a part:
Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention,knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
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It's the same as the case about all-in-one printers. The relevant troll was not suing HP or Brother. The relevant troll was suing companies who perhaps bought an HP or Brother printer with the capabilities described in the relevant patent.
Most of these cases are probably bogus for the same reason.
As much as I would like to enjoy some shadenfreude at Apple's expense, they should not be subjected to this kind of nonsense any more than anyone else.
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Yeah, but why Apple? Then don't make any semiconductors. Isn't payment of patent royalties the responsibility of the manufacturer of the LED's? If not, how can anybody build anything out of parts sourced from other companies? You'd have no way of knowing what patents you were responsible for clearing rights to.
Because patents are about processes and it is illegal to use a patented process without the permission of the patent holder. Apple may not manufacture their own semiconductors, but they specify the design of the semiconductors in their products. Just because they outsource the manufacturing of it doesn't keep them from infringing, or at least being named in the suit (the courts will decide if they infringed or not).
This goes both ways, a view years ago, Apple sued a shit load of people for making unapproved
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One of the first things you learn in law school is that you sue the one with the most money. If the law allows you to go after <rich corporation>, you don't go after the manufacturers that can't cough up a billion dollars in damages. I agree that in these cases (and many others) patent law really sucks, but that's how the game is played.
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I wonder if Isaac Asimov is turning in his grave? Boston University is where he taught and did cancer research in the 1950s.
Re:Not a troll on the surface. (Score:4, Interesting)
This is _exactly_ the kind of thing the patent system was designed for! They're not goofy/obvious/stupid software patents - they are extremely complicated and non-trivial processes.
So how are all these companies using this technology? I can see three scenarios:
1) They figured the processes out themselves, from scratch, despite them being complex and non-trivial. Complexity and non-triviality don't make something patentable; the standard is non-obvious to a person skilled in the art. If multiple other parties developed it from scratch, it is obvious to a person skilled in the art, hence the person is invalid, and the case trolling.
2) All these companies accessed the patent in order to develop their process, but didn't pay for it. This could be the result of a license dispute, or just outright douchery. In this case, the case is legitimate.
3) A manufacturer either performed point 1 or point 2, and is a common supplier to the targets. In this case, the patent holder should have gone after that manufacturer; using a scatter-gun approach to target end-users is abusive, just as much as the people who send threatening letters to small companies using fax machines. In this case, they may have a legitimate case against the original manufacturer, but their cases against the retailers are illegitimate.
It sounds like #3 is the most likely
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I don't follow physics journals, but in the areas I follow, stuff in journals that's patented is usually indicated as such. I'd take that as an instance of #2, myself.
Even so, I'm pretty sure Apple and Amazon, at least, aren't in the LED manufacturing game themselves, although Samsung might be. Still sounds like #3.
Re:Not a troll on the surface. (Score:4, Insightful)
This is _exactly_ the kind of thing the patent system was designed for!
Except that this technology has been in use for how many years? And between 1995 and last fall, BU has filed how many suits?
There is a legal principle called laches [wikipedia.org]. Which basically says: If you don't defend your rights in a timely manner, you lose them. Had BU stepped in and exercised its patent rights from the outset, manufacturers could have negotiated reasonable licensing fees. And BU would be the recipients of a tidy subsidy for their institution over the past decade. Springing stuff on Apple and others* a this point is a tactic akin to blackmail and shouldn't be allowed.
*It could be argued that the LED suppliers Apple used should have the responsibility to ensure that their processes are clear of patent infringement. If you have a laptop, stereo system or automobile with blue LEDs, should we stop by your house to pick them up? At what point do we draw the line?
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How is the patent holder supposed to know that their rights are being violated?
In the general case, that's a good question. In this case, all they'd have to do is read a trade rag. The chemistries used in LEDs are not secrets. (They're patented, so they can't be.)
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Good point. Unlike real property, where its misappropriation is quite evident, IP does not always share that attribute. In some cases, where the patent covers some observable physical characteristic, a patent violation can be seen. However, if the patent covers a process used to produce a product and there are other processes which would produce the same thing, examining the product tells you nothing. But then if the process isn't provably unique, why has it been granted a patent?
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There is a legal principle called laches [wikipedia.org]. Which basically says: If you don't defend your rights in a timely manner, you lose them.
For patents, it isn't quite that simple. If you become aware of someone infringing your patent, and you delay notifying them (or filing a lawsuit) for the purpose of letting damages accumulate, you may lose damages for the time between becoming aware and notifying. You don't lose the right to file a lawsuit, you don't lose the right to seek an injunction or future royalties, and you don't lose all past damages.
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For patents, it isn't quite that simple.
Why not? Do patents have an exception for this part of civil law? And if so, should this be something that is thrown out by patent reform legislation?
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For patents, it isn't quite that simple.
Why not? Do patents have an exception for this part of civil law?
Well, the whole rationale for laches is to effectively introduce a sort of "statute of limitations" into equity law in situations where there is none. For many contracts, there is no effective time limit built in, so laches enables a defendent to assert that delay was unreasonable and rights to that entitlements in the contract should be lessened or negated by that point in time.
Patents have a limited lifespan already, so the duration under which reasonable enforcement is supposed to happen is already se
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By the way, please note that laches can still have an impact in these cases, as the reply to your previous post noted. Depending on the situation, damages for infringement may be reduced, etc. But as long as the control is asserted within the lifespan of the patent, the patent-holder will certainly have a legal right to control (and profit from) any future actions on the patent after the lawsuit is filed... until the patent runs out, of course.
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As much as I hate to side with Apple in a patent matter, Apple is not using the patent at all. I know that because they do not fab basic components, they buy them. If BU wishes to sue the people who actually use their patent that's a different matter.
This is a case of suing the wrong entity. Same for Amazon. They might actually have a legitimate gripe w/ Samsung since they actually fab LEDs.
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I doubt very much that they use custom designed LEDs.
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In that case, BU should sue Toyo and Continental. Audi and Honda should not be part of the action (other than perhaps a heads up) at that point. Iff the suits against the manufacturer determine that there is infringement, future imports may be barred by the court but without liability to Audi and Honda.
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In that case, BU should sue Toyo and Continental. Audi and Honda should not be part of the action (other than perhaps a heads up) at that point. Iff the suits against the manufacturer determine that there is infringement, future imports may be barred by the court but without liability to Audi and Honda.
Whoever IMPORTS THE INFRINGING PRODUCT is breaking the law. How is that not easy to understand? Toyo and Continental would be perfectly within the law to MAKE AND SELL THE PRODUCT in any jurisdiction WHERE THE PATENT DOES NOT APPLY. If you still don't understand, go read the law.
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How is it you didn't understand that what we are discussing is troll/not troll rather than legal/not legal? I know what the law says in all it's brokenness.
What is it that makes you think it is at all fair or reasonable to subject an importer to an unknowable risk of infringement when it/they may not even understand the technology the patent covers?
Re:Not a troll on the surface. (Score:4, Informative)
Enough (Score:4, Insightful)
OK guys, can we please admit the US patent system is broked and needs repair now?
This is getting out of control and I think it's because everyone has arrived at this same basic conclusion: FIX PATENTS NOW.
Re:Enough (Score:4, Insightful)
How? So, a university spends tons of money and years of research refining a process which is far to sophisticated for you to understand, and you think they don't deserve some kind of exclusive rights?
These are NOT trivial and obvious patents, this is not a patent troll, and it does not demonstrate a broken patent system.
In fact, I'd argue that if the defendants were allowed to use this tech without paying royalties, THAT would demonstrate a broken patent system.
Re:Enough (Score:4, Insightful)
They may well have a legitimate gripe with the company that actually made the LEDs. Let them go after them.
The fact that going after a downstream user who may very well not employ anyone who even understands the patent even seems viable is evidence of broken patent law.
It's approaching Kafka's "The Trial" (Happy Birthday Franz). Sued for a process you don't use and don't even understand. Since you don't understand it you cannot even begin to guess if the patent is valid or if your supplier might use or even understand the process, but you're somehow supposed to defend yourself in court and "I have no idea what any of this is and have certainly never used it" just won't do.
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That's the risk of doing your manufacturing overseas, and sourcing overseas suppliers for components. BU doesn't have any way of bringing the patent litigation against a company with no US representation, so they get to go after the people bringing the infringing components into the country instead.
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The manufacturer is Samsung and they have a significant presence in the U.S.
In the theoretical case where the manufacturer chooses to ignore the suit and has no presence in the U.S. the court might bar future imports of the infringing component but innocent 3rd parties would need to be given the opportunity to switch vendors or come to an agreement outside of court. However, they should not be parties to a suit unless/until the courts have found that actual infringement is taking place and 3rd parties shoul
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Why not? Despite the patent system's brokeness, you don't think short copyrights and cheap patents, neither of which we now have, would incite people to create?
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Oh, so in your communist magical fantasy world, people get together in large scientific groups to produce technology purely for altruistic reasons.
No, I just expect people to come up with viable business models on their own, without resorting to government-enforced monopolies over ideas and methods that result in censorship and infringe upon people's property (read: physical property) rights.
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They will keep their processes secret. What patents were invented to stop.
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Eventually can be an awful long time. What's the original recipe for 'Kentucky Fried Rat'? CocaCola?
Patents require you to document the thing you are patenting.
Just because the balance has gone out of whack doesn't mean the concept is inherently broken. Terms on patents is still limited in a sane range, unlike copyright.
Re:Enough (Score:5, Insightful)
Yes. That world is called academia. Just saying.
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Clue time, part 2: If they sued first, they would have been counter-sued, and risked having their products import-banned before selling a single one. That would be a complete fail.
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You don't file the patent suit until after someone violates your patent. Even then you're not required to file suit (Apple does lots of cross licensing instead). There are plenty of examples on the other end, where the inventor of a device received little or no money from their invention even though the device was copied and sold by others.
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I think it's a mystery to him too.
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Apple, Amazon, and Samsung... (Score:2)
...are sure to have enough brain power to work their way around this shit. Just think about how much they could achieve if only they worked together!
In an ideal world (Score:2)
"We refer you to the reply given in the case of Arkell v. Pressdram."
"We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off."
it's troll worthy. (Score:5, Interesting)
They filed it in 1995, it was published in 1997. Its going to expire in the next few years.
They're claiming they invented GaN LED's.
If they weren't being a troll about it, they would have been sueing 10+ years ago, not two years before it expires.
Ya, patents really need "use it or lose it" (Score:2)
I would like to see something like that parties have one year from the time they should have reasonably become aware of a product that infringes on their patents to contact the party infringing to license/desist/whatever. If they fail to, then the patent expires.
So it is fine to patent something and not make something with it. After all, there are places that do research (like universities) that don't make products. You don't need to make something yourself. However if someone starts using your work, and yo
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Shuji Nakamura [wikipedia.org] also made important breakthroughs in this area.
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They're claiming they invented GaN LED's.
Not at all. They even acknowledge in the background of the patent that GaN semiconductors were known. Rather, they're claiming "a method to prepare near-intrinsic monocrystalline GaN films and to selectively dope these films n- or p-type," an improvement on existing GaN technology.
What's next, you're going to look at Toyota's patent on the hybrid transmission in the Prius and say they're claiming they invented the automobile?
We've been here before... (Score:2)
"Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as f
Summary FAIL (Score:2, Offtopic)
Re: Summary FAIL (Score:2)
Hah, gamut (Score:2)
And the targets run the gamut
I see what you did there.
They're not in the patent business (Score:2)
You guys talk like Boston University is in the business of developing technologies to license, and that they keep track of what's happening in the computer industry. I'm quite sure they weren't quietly biding their time, waiting for "their" technology to become entrenched; more likely, they had no clue. I suspect they stumbled upon this patent in their files, either serendipitously or in a search for new revenue streams. Which is basically what every business or organization in the country is doing now, sin
As a local, ... (Score:3)
Let me say Fuck You BU. They're the assholes of Back Bay. Whatever the quality of their Music&Arts Dept and several grad dept's, their undergrad housing sucks, they grab real estate left & right, and run possibly the most boring blahblah public radio station in the nation.
(wow - my first genuine flamebait in years. What set that off?)
BLASPHEMY!!!! (Score:2)
You dare impugn Isaac Asimov? CRUCIFY HIM!!
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If they win this suit, they will use it as additional ammo for targeting the next big company, and then the next, and so on until there's nothing left worth gunning for that hasn't already paid through the nose. It's the same pattern as all the rest of them use.